R v Ferrari - [2002] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 318 of 2001

THE QUEEN
	v.
STEVEN JOSEPH FERRARI

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JUDGES:	WINNEKE, P., EAMES, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2002
DATE OF JUDGMENT:	12 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 186

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Criminal law - Whether conviction on one count of recklessly causing serious injury unsafe and unsatisfactory - Whether open to jury to find that the injury inflicted was serious - Sentence not manifestly excessive nor disparate to sentence imposed on co-offender.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D.G. Wraith	Wightons

WINNEKE, P.:

The applicant, Steven Joseph Ferrari, who is currently aged some 47 years, was convicted in the County Court in August 2001 on one count of recklessly causing serious injury to one Charles Karel Severa, a man 57 years of age. The offence was alleged to have occurred on 18 June 1999, when the applicant was driving his car along Bulleen Road in North Balwyn towards Doncaster Road. At the time, his co-accused, Matthew Ferrari, who was the applicant's brother, was a passenger in the vehicle which was being driven by the applicant. It would appear that at the relevant time, which was approximately eight o'clock in the morning, another vehicle, driven by Mr Severa, had come into minor collision with the vehicle being driven by the applicant as a consequence of a movement on the road of Mr Severa's vehicle to avoid a car on his left. The minor collision caused Mr Severa to follow the applicant's vehicle and to confront the applicant when the vehicles were stationary at the intersection of Doncaster Road. There appears to have followed thereafter an altercation between the applicant and his brother and Mr Severa, in the course of which the applicant's brother wielded a long stick when beating the victim on the roadway around the body and the legs. Such was the severity of that beating that the shin, or the fibula, of the victim's leg was broken.

It appears that at some stage during the altercation the applicant, who was seated in the motor vehicle, the passenger side door of which was open, grabbed the victim by the belt and pulled him backwards across the front seat of the applicant's vehicle. The applicant then rained a number of punches upon the face and head of the victim, causing two significant black eyes to the victim, together with grazes around the top of the head and face. It was only by the intervention of third parties that the altercation ceased and the police were called. In the course of making statements to the police the applicant and his brother sought to attribute blame for the altercation to the victim and suggested that they were doing little more than defending themselves.

During the course of the trial the victim's evidence was significantly corroborated by independent witnesses, and the applicant gave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ferrari

Details

AGLC: R v Ferrari [2002] VSCA 186
Case: [2002] VSCA 186
Decision Date: 12 November 2002

CaseChat Overview and Summary

In the matter of R v Ferrari, the defendant was convicted of recklessly causing serious injury. The case was heard and determined in the court of appeal. The primary issue before the court was whether the conviction on one count of recklessly causing serious injury was unsafe and unsatisfactory, particularly in relation to whether it was open to the jury to find that the injury inflicted was serious. Another issue considered was whether the sentence imposed was manifestly excessive or disparate to the sentence given to the co-offender.

The court examined the evidence presented and the jury's findings, considering the nature and extent of the injury inflicted. It was established that the jury had properly assessed the evidence and had been correctly directed on the legal standards to apply. The court found that the evidence supported the jury's conclusion that the injury was serious, thereby upholding the conviction. Regarding the sentence, the court held that it was neither manifestly excessive nor disparate when compared to the sentence imposed on the co-offender. The reasoning was based on the totality of the circumstances, including the nature of the offence and the defendant's role in the events.

As a result of the court's reasoning and findings, the conviction on the count of recklessly causing serious injury was upheld, and the sentence was affirmed. The appeal was dismissed, and the original judgment and sentence stood as determined by the lower court.

Orders